DUI charges stand in Skagit County

Judges find misconduct at state toxicology lab

By TRACY JOHNSON, P-I REPORTER

Published 10:00 pm, Tuesday, October 23, 2007

Two judges found governmental misconduct and other troubling practices at the State Patrol toxicology lab, but ruled Tuesday that there wasn't reason to dismiss the charges against 51 drunken-driving suspects.

In a widely anticipated decision, the Skagit County District Court judges found examples of careless or potentially flawed work done by state scientists and evidence that three people -- including state toxicologist Barry Logan -- committed misconduct.

The judges didn't believe Logan, the head of forensic lab services for the State Patrol, when he said he didn't know his lab manager was falsely certifying test results.

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But Judges David Svaren and Warren Gilbert didn't find any indication that the drivers' rights were violated or that their breath-test results were skewed.

"It's the way we thought it should be," Deputy Prosecutor Toni Montgomery said. "I think they saw, from all of the testimony, that the test results were accurate and reliable."

The State Patrol has known about "a few minor errors" and has worked to fix them, "but the defense made a much larger issue than it really is," Capt. Jeff DeVere said. "We're looking at this as an opportunity to make a good tox lab even better."

DeVere said State Patrol Chief John Batiste has full confidence in Logan and believes he took action as soon as he learned of the lab manager's alleged misconduct.

Defense lawyers may ask the judges to reconsider.

"It seems to send the message that you can engage in fraudulent actions and sloppy work and not have to worry about the consequences," attorney Bill Bowman said.

Attorney Ted Vosk said he was pleased that the judges "seemed to agree that we established misconduct and the fact that the toxicologists don't seem to know how important their job is."

The ruling follows a hearing in Mount Vernon earlier this month, when defense attorneys questioned state scientists about their practices. The lawyers unsuccessfully urged the court to dismiss the DUI charges or keep the breath tests out of court.

Judges around the state will hear similar requests in the coming months and may rely on testimony from the Skagit County case, though they will reach their own conclusions.

King County and Seattle Municipal Court judges will consider the issue next month.

Seattle City Attorney Tom Carr said he was pleased with Tuesday's ruling; King County prosecutors were reviewing it.

The 51 drunken-driving suspects in Skagit County will now either face trial or plead guilty, though prosecutors there have already vowed not to give any plea deals to the people who mounted this legal challenge.

Defense attorneys can still try to sway juries with evidence of problems at the Seattle lab.

The case centered on how the lab makes and tests an ethanol-water solution that's used to make sure the state's breath-test machines are working properly.

The lab's former manager, Ann Marie Gordon, is accused of repeatedly signing sworn statements certifying that she tested the solution when she actually had someone else do the work.

King County prosecutors are deciding whether to charge her with perjury.

At the same time, the scientist who apparently did the testing for her, Ed Formoso, is on paid administrative leave while the State Patrol investigates.

Tuesday, the judges found that Gordon and Formoso's actions amounted to governmental misconduct and that there was evidence that Logan's "action or inaction" did as well. They also cited other troubles:

A computer wasn't calculating data about the ethanol-water solution correctly, which could lead to "potentially devastating effects" if it miscalculates breath-test results.

Lab workers didn't notice documentation errors, showing "the certifications are not carefully read by the analysts before they are signed."

Scientists who test the solution were trained to discard results that are incorrect.

They share a computer password, which could allow them to alter others' results, raising "the potential for false data entry."

The judges noted that "we are living in a 'CSI' era where the public has come to expect solid scientific evidence in criminal case."

Although accurately reporting data is essential, they wrote, the importance of making sure that sworn statements are accurate "appears to have been lost on the toxicology lab."